September 4, 2020

The U.S. Department of Education (“Department”) this week published final regulations in the Federal Register to update and revise requirements for distance education programs and to make related changes to other regulations. Secretary DeVos said in a statement that the new rules “promote educational innovation to better serve the needs of an increasingly diverse population of students.” The Department also issued a fact sheet to summarize the significant policy changes. The new regulations are effective as of July 1, 2021, but the Secretary exercised her discretion to allow institutions to implement the new regulations immediately.

These final regulations represent the last step in Department’s expansive 2019 negotiated rulemaking exercise. The negotiators in that rulemaking session surprised many by reaching consensus on all topics under consideration, and the Department subsequently issued three sets of proposed regulations consistent with the consensus decisions. The Department issued final rules on accreditation and state authorization matters on November 1, 2019, and on issues related to TEACH Grants and faith-based entities on August 14, 2020. These new distance education regulations complete the rulemaking process.

The new regulations make a host of changes, such as:

1. clarifying the distinction between distance education courses and correspondence courses;
2. defining the previously problematic requirement for “regular and substantive interaction” in distance education programs;
3. providing for additional flexibilities in applying the concepts of clock hours and credit hours, including in distance education and direct assessment settings;
4. simplifying rules for disbursement of Title IV funds to students enrolled in newly defined “subscription-based programs”;
5. allowing for continued Pell Grant eligibility for students incarcerated in a “juvenile justice facility”;
6. permitting students enrolled in Title IV-eligible foreign institutions to complete portions of their programs at eligible institutions inside the United States;
7. modifying the rules regarding the maximum number of clock hours in programs that lead to gainful employment in a recognized occupation; and
8. requiring the Department to take “prompt action” on applications for certification and recertification.

Below we will discuss in more detail several of the more significant changes promulgated in these new regulations. All regulatory references are to Title 34 of the Code of Federal Regulations.

Distance Education and Correspondence Courses

The new regulations update the definitions of distance education and correspondence courses in 34 C.F.R. § 600.2. The intent is to delineate more clearly between these two types of instructional modalities.

A correspondence course is one in which “the institution provides instructional materials, by mail or electronic transmission, including examinations on the materials, to students who are separated from the instructors.” A key feature that distinguishes a correspondence course from a distance education course is that “[i]nteraction between instructors and students in a correspondence course is limited, is not regular and substantive, and is primarily initiated by the student.” A course that combines correspondence and residential training is considered a correspondence course. Section 600.7(b)(2) provides that a student is considered to be enrolled in correspondence courses if more than 50% of the student’s courses in an award year are correspondence courses.

By comparison, a distance education course is one in which instruction is delivered by one or more types of technology, including the internet, various wired and wireless media, or audio conference to students who are separated from the instructor(s). These technologies “support regular and substantive interaction between the students and the instructor or instructors, either synchronously or asynchronously.”

The new definition recognizes that a distance education course may have more than one instructor, thereby allowing for team teaching. It specifies that “an instructor is an individual responsible for delivering course content and who meets the qualifications for instruction established by an institution’s accrediting agency,” so as to distinguish instructors from other institutional personnel such as those engaged in technology support and academic advising.

Regular and Substantive Interaction

A key element of a distance education course is that there must be regular and substantive interaction between the students and the instructor. This is not a new requirement, but there has been considerable uncertainty regarding the meaning and extent of this ambiguous term that the new definition seeks to address.

“Substantive interaction” is defined as “engaging students in teaching, learning, and assessment, consistent with the content under discussion.” It must include at least two of five components:

1. “Providing direct instruction”;
2. “Assessing or providing feedback on a student’s coursework”;
3. “Providing information or responding to questions about the content of a course or competency”;
4. “Facilitating a group discussion regarding the content of a course or competency; or”
5. “Other instructional activities approved by the institution’s or program’s accrediting agency.”

“Regular interaction” requires an institution to ensure, “prior to the student’s completion of a course or competency,” that there is “the opportunity for substantive interactions with the student on a predictable and scheduled basis commensurate with the length of time and the amount of content in the course or competency.” The institution also is responsible for “[m]onitoring the student’s academic engagement and success and ensuring that an instructor is responsible for promptly and proactively engaging in substantive interaction with the student when needed on the basis of such monitoring, or upon request by the student.” (Emphasis added.)

The Department also provides a new definition of “academic engagement.” It requires “[a]ctive participation by a student in an instructional activity related to the student’s course of study” as defined by the institution consistent with any requirements imposed by its state approval or accrediting agency. Academic engagement can include such activities as attending a class where the students and instructor can interact, turning in an academic assignment or taking a test, participating in an interactive computer-assisted instruction, participating in an institutional-directed group activity or online discussion, or interacting with the instructor regarding academic matters. It specifically excludes living in institutional housing or participating in an institutional meal plan, logging into an online class without further participation, and participating in academic counseling or advising.

Clock Hours and Credit Hours

The Department has updated the definitions of clock hour and credit hour. The goal of these changes is to provide more flexibility with regard to clock-to-credit hour conversations and to clarify the calculations with regard to modalities such as asynchronous instruction and distance education.

A “clock hour” is defined as 50-60 minutes of instruction or other specified academic activity in a 60-minute period. Institutions can calculate clock hours both for synchronous instruction where there is direct interaction between the students and the instructor and for an asynchronous academic engagement activity where the student interacts with technology that has the capability to monitor and document the amount of time the student participates in that activity. In all cases, the institution must be able to monitor the student’s attendance in at least 50 minutes in each 60-minute clock hour and, for distance education programs, to comply with all state approval and accrediting agency requirements.

A “credit hour” represents a period of student work that is defined by the institution in compliance with the requirements of its state approval and accrediting agencies. It must reasonably approximate either one hour of direct instruction and two hours of out-of-class work each week or an equivalent amount of work in other academic activities such as laboratory work and internships. The Department also concluded that institutions can “take into account a variety of delivery methods, measurements of student work, academic calendars, disciplines, and degree levels” when making credit calculation determinations. It bears noting, however, that many state approval and accrediting agencies maintain stricter or more prescriptive requirements for credit calculations.

Incarcerated Students and Juvenile Justice Facilities

The new regulations modify the eligibility of certain incarcerated students to receive Pell Grants. The new definition of “incarcerated student” provides that “for purposes of determining Pell Grant eligibility under 34 CFR 668.32(c)(2)(ii), a student who is incarcerated in a juvenile justice facility, or in a local or county facility, is not considered to be incarcerated in a Federal or State penal institution, regardless of which governmental entity operates or has jurisdiction over the facility.” The rule states that such a student nevertheless is considered to be incarcerated “for the purposes of determining costs of attendance under section 472 of the HEA in determining eligibility for and the amount of the Pell Grant.” A “juvenile justice facility” is a residential facility that provides care and rehabilitation for youths accused of delinquency or deemed delinquent or in need of supervision under state laws.

Program Length

Current regulations at Section 668.14(b)(26) limit the eligibility of programs that prepare graduates for gainful employment in a recognized occupation to those programs comprising no more than 150% of the minimum number of clock hours for training in the recognized occupation as established by the state in which the institution is located, if any, or by any federal agency. The new regulations modify this limitation by retaining the current 150% maximum in the institution’s home state and by adding a limitation of 100% of the minimum number of hours of training as established by a state adjacent to the state where the institution is located, whichever is greater.

Department Review of Applications

The Department recognized in the preamble to the new regulations that it has not always acted on institutional applications for initial certification and recertification in a timely fashion, and in the fact sheet summarizing the new rule, the Department acknowledged these applications in the past “have been stalled for months or even years.” Section 600.20 has been revised to require the Secretary to take “prompt action” on any materially complete application for initial or renewed certification. Additionally, Section 668.13 now provides for an automatic renewal of certification if an institution files a materially complete application for recertification and the Secretary has not made a decision within 12 months of the original expiration date. Such automatic renewal may be provisional.

Maynard is a full-service firm with attorneys experienced in all regulatory and operational aspects of higher education, including federal and state oversight, accreditation, employee and benefits issues, and real estate concerns. We invite institutions to review the resources our attorneys have assembled to help our clients deal with the challenges created by the COVID-19 emergency.

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